United States District Court, D. Nebraska
BRIAN A. WIT, Plaintiff,
OFFICER MURPHY, 1750, Lincoln Police Department; OFFICER WAYNE, 1751, Lincoln Police Department; UNKNOWN OFFICER, Lincoln Police Department; and PROSECTOR MAKING CLAIM, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Brian A. Wit, filed this case on January 30, 2019, and has
since been granted leave to proceed in forma pauperis. The
court now conducts an initial review of Plaintiff's
Complaint (Filing 1) to determine whether summary dismissal
is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
alleges that on January 1, 2019, at 1:00 a.m., he was pulled
from a car and “manhandled for being mouthy.”
Listed as Defendants are three Lincoln police officers, only
two of whom are identified by last name and badge number, and
an unnamed prosecutor. Plaintiff alleges he sustained
multiple injuries, including a black eye, cuts and bruises,
and a dislocated shoulder.
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
construed, Plaintiff's Complaint asserts one or more
claims for relief under 42 U.S.C. § 1983. To state a
claim under § 1983, a plaintiff must allege a violation
of rights protected by the United States Constitution or
created by federal statute and also must show that the
alleged deprivation was caused by conduct of a person acting
under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988).
does not specify whether he sues Defendants in their
individual or official capacities. Where a plaintiff does not
specify the capacity in which a defendant is sued, it is
presumed that a defendant is sued in his official capacity
only. See, e.g., Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999) (stating that “in
order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state
so in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official
capacity.”). A claim against an individual in his
official capacity is in reality a claim against the entity
that employs the official. See Parrish v. Luckie,
963 F.2d 201, 203 n. 1 (8th Cir. 1992) (“Suits against
persons in their official capacity are just another method of
filing suit against the entity.... A plaintiff seeking
damages in an official-capacity suit is seeking a judgment
against the entity.”).
City of Lincoln may only be liable under section 1983 if a
municipal “policy” or “custom” caused
a violation of Plaintiff's constitutional rights. See
Doe By and Through Doe v. Washington County, 150 F.3d
920, 922 (8th Cir. 1998) (citing Monell v. Department of
Soc. Servs., 436 U.S. 658, 694 (1978)). An official
policy involves a deliberate choice to follow a course of
action made from among various alternatives by an official
who has the final authority to establish governmental policy.
Jane Doe A By and Through Jane Doe B v. Special School
Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.
1990) (citing Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986)). To establish the existence of a
governmental custom, a plaintiff must prove:
1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental